Lead Opinion
At the general election in November, 1920, an amendment to section 7, art. 6, of the state Constitution, proposed by the legislature
In the title of chapter 531, the amendment is referred to as one changing the length of the term of thе judge of the probate court. The act provided that the ballots used at the election should have printed thereon: “Amendment to section seven, article six, of the constitution of the state of Minnesota, providing for extension of the term of office of the probate judge to four years.” On' December 1, 1920, the Governor issued his proclamation declaring that the amendment had been approved by the electors.
At the same election the relator was duly elected to the office of judge of the probate court of Lyon county fоr the term commencing on the first Monday in January, 1921. He qualified and has since been the acting judge of said court. On July 19, 1921, he duly tendered to the respondent, as county auditor of Lyon county, the filing fee and affidavit required by law in order to have his name placed on the primary election bаllot as a candidate for the same office at the primary election to be held in 1922. The auditor refused to receive them, for the sole reason that he was of the opinion that the amendment operated to make the relator’s term of office four years frоm the first Monday in January, 1921, and hence there would be no vacancy in the office to be filled at the election held in 1322. These facts were set forth in relator’s petition to this court, upon which he obtained an alternative writ of mandamus directed to the county auditor, requiring Mm to receive the filing fee and affidavit or show cause why he had not done so. The respondent answered, admitting the allegations of the petition, and asked that the writ be quashed. The question to be decided, as concisely stated in relator’s brief, is this: Does relator’s term of office as judge of probate expire in January, 1923, or in January, 1925?
Section 7, before it was amended, read:
“There shall be established in each organized county in the state a probate court, which shall be a court of record and be held at such times and places as may be prescribed by law. It shall be held by one judge who shall be elected by the voters of the county for the term of two years.”
Relator contends that its operation must be postponed until 1923 and that probate judges elected in November, 1922, will be the first to hold office for four years. Respondent contends that probate judges elected in November, 1920, hold office for four,years from the first Monday in January, 1921. In support of his contention counsel for the relator argues that, when the еlectors cast their ballots at the November election in 1920, the term of office of probate judges was two years and continued to be two years until December 1, when the Governor’s proclamation was issued. City of Duluth v. Duluth St. Ry. Co.
Counsel for respondent insist that the real question is: "What did the legislature intend by the proposed amendment and what did the electors understаnd it to mean when they voted on it?' Usually when a court sets out to ascertain how a constitutional amendment was understood by the electorate, it has no reliable guide. Probably the question now raised occurred to few. The ordinary voter casts his ballot for the man he wishes to havе elected, uninfluenced by any consideration of the length of his term of office. In the present instance, if he thought about it at all, he might properly conclude that, if the amendment was adopted, the candidate elected would take office for a term of four years. There was nothing in the language to suggest that the operation of the amendment was to be postponed for two years. After December 1, 1920, the original provision 'of the Constitution was no longer in effect. It is difficult to presume that it was the intention that the duration of a term of office which began after December 1 should be fixed by a provision which had been superseded by the amendment. The object of the amendment was to make the term of office of probate judges conform to that of other county officers as fixed by chapter 168, p. 233, Laws of 1915. Such offiсers will be elected in 1922 and probate judges in 1924, if respondent’s construction is adopted, but we do not regard that circumstance of much importance since there must be general elections every two years anyway.
There are certain familiar rules for the constructiоn of constitutional provisions which are more or less pertinent here. They are substantially the same as the rules applicable to the construction of statutes. State v. Twin City Tel. Co.
Article 6 should be read as a whole to get at the meaning of any one of its sections. Sections 3, 4 and 8 relate respectively to judges of the supreme court, district judges and justices of the peace. After defining the body of electors by whom these judicial officers are chosen, the term of office is fixed at six years in the first two instances and two years in the last. Section 7, relating to probate courts, directs that the judges “shall be elected by the voters of the county for the term of two years,” instead of declaring that their term of office shall be two years. If an amendment to section 4, extending the term of office of district judges to eight years, had been submitted and approved and a judge elected at the same gеneral election, a question would arise similar to that presented here. If relator’s construction is correct, the judge would take office for six years, although the Constitution, as amended, expressly declared that the term of office of district judges should be eight years. In the cаse supposed, such a construction, would seem forced. It is only a degree less forced when we consider, how slight is the variation in the language of section 7. Section 24, art. 4, of the Constitution, indicates that little attention has been paid to forms of ex-pi*ession similar to those found in article 6. It provides that representatives shall hold office for a term of two years and that senators shall be chosen for four years. Here we have in one section the same variation in phraseology as in the several sections relating to judges. To say that because representatives hold office for a fixed term, while senators are chosen for a fixed term, the framers of the section had different things in mind, is to draw too fine a distinction, and the statement holds good with respect to article 6.
In its final analysis, we think the question is this: When the electоrs voted to amend the Constitution by enlarging the term of office of probate judges, and at the same time elected the judges,
After due consideration of the opposing contentions, clearly and forcibly presented by counsel, we conclude that the amendment was intended to enlarge and did enlarge the official term of probatе judges chosen at the general election in 1920, and that when they took office in January, 1921, it was for a term of four years.
Writ discharged.
Dissenting Opinion
(dissenting).
Probate judges were elected in November, 1920, for a term of two years commencing on the first Monday in January, 1921. This is necessarily so, tfor they were elected under а Constitution providing for a two year term commencing on the first Monday in January following their election. If in January, 1921, they facéd terms of four years instead of two it is because the constitutional amendment of 1920, not effective until after they were elected and in due course had recеived their certificates of election, operated to extend the terms to which they were elected. ' The added two years did not
In determining the intent of the voters the settled rule of construction is that a constitution like a statute operates prospectively Tinless a contrary intent is manifested with clearness. A further rule is that án ambiguity as to length! of a term should be resolved in favor оf the shorter term; and the office, if elective, be returned to the voters to be filled in the ordinary way at the earliest practicable time. State v. McKay,
I am unable to see a purpose to make the amendment retrospective, and thus to give to each probate judge elected in 1920 an additional two years. The argument to that effect is forcefully made. It might be carried, with less force, so far as to claim that the incumbents at the time the amendment became operative were given an additional two years. If the intention had been to extend the periоd of office of those elected in 1920 for two years beyond the time for which they were in fact elected, the representatives of the people in proposing the amendment naturally would have followed tbe precedent established in 1883, when, in fixing the official year аnd changing to biennial elections, the constitutional amendment expressly made a gift of an additional period of service to those elected at the election at which the amendment was submitted. Const, art. 7, § 9; Laws 1883, p. 6, c. 2; State v. Frizzell,
No cases directly in point are cited. The following are useful: State v. Wright,
For the reasons stated I think the amendment of 1920 was not intended to operate retrospectively, and that the four year term for which provision was made should be held to commence on the first Monday in January, 1923, for which term the judges should be elected at the November, 1922, election. Therefore I dissent.
Dissenting Opinion
(dissenting).
I concur in the views expressed by Mr. Justice Dibell.